1981 DES Case: Namm v. Charles E. Frosst & Co.

ABSTRACTS

” This is a pharmaceutical products liability case wherein plaintiffs appeal from a summary judgment dismissing their complaint against approximately 44 drug manufacturing and distributing companies. The compliant charges defendants with liability based upon principles of negligence, breach of warranties and strict liability.

Plaintiffs Gail Namm and Paul Namm, are husband and wife and in their complaint they allege that prior to February 15, 1949 all of the defendants named “manufactured, compounded, tested, sold and marketed” large quantities of synthetic estrogen known as “diethylstilbestrol“, “stilbestrol” and “dienestrol” (hereinafter referred to collectively as DES) in prescription drug form. The drug was promoted for use by pregnant women to prevent loss of the fetus by spontaneous abortion. Plaintiff Gail Namm was born February 15, 1949. Prior thereto her mother had ingested DES obtained by prescription from her obstetrician to prevent termination of her pregnancy by spontaneous abortion. Plaintiffs allege that Gail Namm developed adenocarcinoma of the vagina and “underwent a total abdominal hysterectomy” in August 1975, and that the adenocarcinoma Gail developed was caused by the DES ingested by her mother.

The complaint was filed August 1, 1977. Although more than 300 companies have manufactured or sold DES since 1941, the complaint names only 74 companies as defendant-manufacturers; 44 were served and answered the complaint. On June 22, 1977 an order was entered fixing dates for service of the complaint and for the filing of answers. The order postponed indefinitely the assertion of crossclaims and third-party claims and provided for orderly discovery as to the identification of the pharmaceutical and the identification of the manufacturer. Discovery as to identification was obtained from plaintiffs, Gail Namm’s parents, their doctor and pharmacist, hospital records and representatives of defendant drug companies. The primary source of information as to identification of both the drug and the manufacturer was obtained from Mrs. Vernick, Gail’s mother.

She recalled that she obtained pills (as opposed to capsules or other forms of oral medication) during her pregnancy. The original prescription came from Dr. Bogen, her obstetrician, and the medication was obtained from Elks Drug Store in Brooklyn. While she did not recall what the pill container looked like, she did recall there were several different pill sizes but none smaller than five milligrams. They were white or light in color and contrasted with the dark surface of her kitchen counter. She was unable to provide any other details concerning the appearance or physical characteristics of the pills.

The owner of the pharmacy obtained drug supplies from wholesalers, cash peddlers, manufacturers and other local drug stores. He had no recollection or records which shed any light on either the source of his supply of DES or purchases by the Vernicks. Nor was he able to state when he first began to supply DES, where he obtained it or the physical characteristics of the DES he did supply.

Other discovery did not provide any information whatsoever as to the identification of the manufacturer or distributor or as to the nature or appearance of the pharmaceutical.

All defendants thereafter moved for summary judgment, primarily on the grounds that plaintiff had failed to identify the manufacturer or to produce any evidence linking any individual defendant with the drugs which allegedly caused plaintiff’s injuries (the defendants have many other defenses which are all reserved and are not involved in this appeal). It was for this reason that the trial judge granted the summary judgment as to all 44 defendants.

Plaintiffs conceded at oral argument in the trial court and before us that they were unable to identify the manufacturer or distributor of the drug allegedly causing plaintiff’s injury and that it was unlikely that they would be able to do so. However, for reasons to be considered below, plaintiffs argue it is not necessary that they do so in order to maintain this action. …

… In an attempt to circumvent this general principle plaintiffs place reliance upon two theories of liability which have been described as “alternative liability” and “enterprise liability.” Plaintiffs contend that the application of either or both of these theories establishes that the grant of summary judgment was improper.

Alternative Liability

This theory is said to evolve from those cases which hold that if a party cannot identify which of two or more defendants caused an injury, the burden of proof may shift to the defendants to show that they were not responsible for the harm. This theory does not apply where a joint tort is involved, but rather where independent acts by two or more joint tortfeasors are alleged to have occurred, with all the tortfeasors having acted wrongfully, but only one having injured plaintiff.

Plaintiffs argue that where, as here, “the presumption of liability verging toward a certainty is against one or more of the defendants” the theory of alternative liability shifts the burden to each defendant in turn to come forward with proof of its particular activity as it relates to the supply and distribution of its output of DES in explanation or exoneration of its conduct, and that if any named defendant feels additional manufacturers of DES are needed to complete the roster of named defendants, it is free to bring them into the litigation as added defendants. Plaintiffs continue to argue that not only does the burden of proof shift to each defendant becoming one of exculpation but that plaintiffs are entitled to a charge that requires a jury to render a verdict in favor of plaintiffs against at least one defendant.

Plaintiffs further argue that they are entitled to proceed to trial where each defendant will be motivated to fix responsibility upon others as part of the incentive to accomplish their own exculpation. …. …. …

Enterprise Liability

Plaintiffs argue that liability should be imposed upon defendants collectively because “the acceptance of DES by the medical profession and the unsuspecting public was the consequence of a cumulative effort by all who entered the market as manufacturers … and of immense promotion and advertising to which defendant’s contributed a mite, or a treasure or something in between.”

Plaintiffs conceded in the trial court and at least tacitly in this court that this theory is contrary to the established law of this State, but claimed that the traditional requirement of manufacturer identification in a product liability case should be discarded here because each defendant participated in an “industry enterprise” and a “pervasive and cumulative market effort.”This theory referred to as “enterprise liability” or “industry wide liability,” if adopted, would impose liability upon each member of an industry who manufactures or produces a product which causes injury or harm to a consumer. The share of liability of each member of the industry would be measured by reference to that defendant’s share of the market for the product.

Adoption of this legal theory would, of necessity, result in total abandonment of the well settled principle that manufacturers are only responsible for damages caused by a defective product upon proof that the product was defective and that the defect arose while the product was in the control of defendant. And traditional methods of assessing and apportioning damages among defendants would also, of necessity, have to be abandoned and new ones fashioned. ” … …